The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1887-10-01
The ARMY and Navy Act |.
OPINION OF THE JUDI
GARY.
DEPARTMENT OF THE JUDICIARY,


His EscelIency Clarence W.
ashford, Attorney-Generdl-SIR
The Justices of the Supreme Court
have had the honor to receive from
your Excellency letter dated the
27th instant, requesting, on behalf
of His MaJesty's Cabinet, by virtue
of the provisions of Article 40 of
the Constitution, the opinion of the
Justices on the following questions,
TO wit:
First-"Does the Act of the Le-
gislature, entitled AN Act to Organ
ize the Military Forces of the King
dom,' approved the first day Of
October, 1886, and being Chapter
XXII. of the Session Laws of 1886,
contravene the Constitution of this
Kingdom, and is said Act or any
part thereof, unconstitutional, for
any reason, especially for any of the
reasons hereinafter enumerated"-
mentioning four.
We discuss the second alleged
reason first. 1t reads:
"That Section 2 of said Act eX-
pressly purports to make the Chief
of Staff, under the title of Lieuten-
ant General, the Commander-in-
Chief of all the armed forces Of the
Kingdom, under the supreme COM
mand of His Majesty as Generals
simo, whereas Article 26 of the
Constitution provides that "the King
is the Commander-in-Chief of the
Army and Navy, and of all other
military forces of the Kingdom by
sea and land"
The Section of the Act reads as
follows:
"Section 2. There shall be a
Staff, the Chief of which shall hold
the rank and title of Lieutenant
General, appointed and commits
stoned by His Majesty the King, to
hold Office during His Majesty's
pleasure. This officer shall be Com
mander-in-C Chief of all the armed
forces of the Kingdom, under the
supreme command of His Majesty
as Generalissimo."
We notice the incongruity of the
"Chief of Staff" being the "Com-
mander-in- Chief" positions which
would seem to be incompatible. For
the "Staff" is composed of subordi-
nate officers about superior officer,
who execute his commands, and
their head is the Chief of Staff. 1t
is impossible to see how one person
can be the "Commander-in- Chief"
and also the "Chief" of his own
"Staff." But the incompatibility
of two offices, one of which is sub
ordinate to the other, being held by the
same person, is matter of construc-
ton, and does not affect the graver
question of the constitutionality of
the Act. We put it in this way:
His Majesty is, by Article rs of the
Constitution, the COMMANDMENT
Chief of the army and navy and of
all other military forces of the King
dom. The Act in question author
ICES His Majesty to appoint Com
mander- Chief of all the armed
forces of the Kingdom, under the
supreme command of His Majesty
as GeneralissimO. We are of OPT
Mon that a function which the Con-
stitution has conferred upon His
Majesty, he cannot delegate to ano-
ther, unless the warrant for the de-
legation of authority is provided for
in the Constitution. And what His
Majesty cannot do in this respect,
the Legislature cannot do by enact
ment. There certainly cannot be
two Commanders-in-Chief of the
same army at the same time. The
section of the Act under considera-
ton is, in our opinion, repugnant to
Article 26 of the Constitution.
Being of this opinion, the appoint
ment by the King of a Commander
in-Chief of all the armed forces
would be without warrant of law.
The duties therefore devolved upon
such an officer by the Act, cannot
be performed. The conclusion at
which we have arrived would make
it unnecessary to consider the other
reasons put forth why other parts of
the Act are unconstitutional but as
our opinions are asked upon them,
we will give them.
The first one stated is:
"That Section / of said Act,
while making the Minister of For
eign Affairs Secretary of War and
of the Navy and responsible to ac-
count for all disbursements made on
account of the military or naval Or
ganization, does not, nor does any
other section of said Act invert
either the said Minister or any other
Cabinet Minister with any direct
control over such expenditures"
In Section ! the duties of the Min
lister of Foreign Affairs as Secretary
of War and of the Navy are "to
account for all monies disbursed by
the Military and Naval Depart
ment and to accept and approve all
drafts upon the Treasury therefor"
This means that he is to keep the
accounts of the Department of War
and of the Navy and that his ap-
proval of drafts upon the Treasury
is essential, if they cannot be paid.
We notice that this section does not
confer upon the Minister the